American-born Foreigners & The Case of Hamdi

The captured enemy combatant, Yaser E. Hamdi, was born in Louisiana to Saudi parents. His father was working with a temporary worker visa for Exxon. The family returned to Saudi Arabia while Yaser was still a toddler, and he never return to the U.S. again until after he was captured in Afghanistan during a battle in which he fought against U.S. forces. Upon learning that he was born in the U.S. it was automatically assumed that he was therefore a U.S. citizen. That is the common impression and understanding, but is it correct or is it flat out wrong?

People make mistakes all the time, -they get the wrong idea. They misinterpret what someone said or meant. They take something the wrong way. They act on erroneous assumptions which may have harmless results, or may have devastating results. Lives, marriages, and fortunes are lost due to someone getting the wrong idea from an ambiguous statement or piece of information which actually had more than one possible meaning.
Governments suffer from that calamity as well when some idea becomes accepted as true when in fact it is false. Such a situation has resulted in an enormous travesty against common sense, tradition, federal policy, and Constitutional law. It’s the situation related to U.S. citizenship and whether or not it is legitimately and constitutionally possessed by all native-born children of foreigners.

Section 1 of the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That clear language was in contradiction to and a repudiation of the Supreme Court’s decision in Dred Scott v. Sanford, which ruled that African-Americans were not citizens, nor even “persons”, by the intended meaning of the Constitution & the Declaration of Independence on the basis that illiterate, uneducated heathen savages were not considered to be equal to the civilized sons of the Creator who were imbued with the capacity for higher spiritual thought, education, aspiration, and responsibility.

At that time men were socially superior to women, and dark skin peoples were viewed as inherently inferior to the light skin Caucasians. So the court’s understanding of the view held by the founding father’s generation can’t be simply dismissed as being a completely wrong view because it was based on the reality of what was then actually believed by many during the epoch when the Constitution was written and ratified.

Today, the common perception of the 14th Amendment’s citizenship clause is that it mandates citizenship for anyone born on U.S. soil. Such a reading dates to an erroneous impression of a Supreme Court decision in 1898; the case of United States v. Wong Kim Ark.
Two years earlier the same court had handed down the infamous Plessy v. Ferguson ruling which established a new era of “separate but (un)equal”. * While the common impression of the Wong Kim Ark ruling is that it granted citizenship to everyone born in the United States, except children of foreign representatives and sovereign Native Americans, it doesn’t follow that that was the Court’s actual reading of the 14th Amendment. It can’t be assume that the court wrongly put forth a ruling that today’s view reflects since it may simply be that the impression of their ruling is wrong.
Instead of the Court decision being “erroneous”, more likely it was the brain-dead bonehead misinterpretation of that ruling that is the source of the problem of universally granting citizenship to any foreigner’s child delivered within U.S. borders. Who it was that came up with that misinterpretation is unknown, but it can be assumed that it was the Attorney General in office in 1898-99 who wrote the official interpretation of the court’s opinion for the executive branch.

It’s all too easy to ignorantly assume that the false interpretation was that of the Court instead of someone who misconstrued their ruling and had their error spread far and wide.
That misconstrued view includes “All persons born in the United States” then skips over and ignores “and subject to the jurisdiction thereof” and then includes “are citizens of the United States and the state wherein they reside.” By ignoring “subject to the jurisdiction”, the required subjection to Washington was overlooked for a mindless version that requires nothing more than birth within U.S. borders. That gutted the structure of the citizenship clause, removing the justification for U.S. birth being coupled with the granting of citizenship.

If someone brings a child into the world in the United States and that person is not responsible for the survival of the nation, like every citizen and every immigrant member of American society, then there is no basis on which to impute U.S. citizenship to his off-spring because his off-spring, like him, is not subject to the federal government since it’s subject to its parents’ foreign government.

To put it in clearest terms possible; just as an immigrant father is responsible for the survival and defense of his own child, so he is also responsible for the defense and survival of the nation into which his child is born and belongs.

The wording of the 14th Amendment was intended to convey the same requirement as the Civil Rights Act of 1866 which was its template, but it was kept so simple in its phasing that it failed to convey the message of the Civil Rights Act, which was that persons born in the U.S. to foreigners must be “not subject to any foreign power” in order for citizenship to be conveyed.

During Senate debate about the 14th Amendment this view was clearly expressed by Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, who stated that “subject to the jurisdiction” of the United States meant subject to its complete jurisdiction; “Not owing allegiance to anybody else.”

The U.S. Supreme Court supported that as the intent of the amendment and the authority of Senator Trumbull’s statement when it ruled in Elk v. Wilkins, as well as in the earlier Slaughter-House case which made clear in the majority opinion that “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
In Elk v. Wilkins the Court held that the claimant was not a U.S. citizen despite having been born on U.S. soil because the clause “subject to the jurisdiction” of the United States required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
Even the dissenting opinion, which included the Chief Justice, recognized that U.S. citizenship was not intended for those who were at the time of their birth subjects of any foreign power.

The strongly held position of the United States government was that a native-born child could not be subject simultaneously to two different governments. It was either one or it was the other, -never both. Both would be a kind of citizenship bigamy and that was anathema to the American spirit which viewed people as either Americans or foreigners, -not both!
To be subject to two governments would be like having two wives in two different houses or serving in the National Guard of two different nation’s armies. One can’t be two different things at the same time. You must choose one or the other, or the choice will be made for you.

The choice that the federal government made was that those who were subject to service in the United States military were the prime pool of foreigners whose children would be granted citizenship because their father might fight and die for the United States. If the father was deemed to be subject because he was a domiciled immigrant and member of American society, then his off-spring were subject through him. They were to be granted citizenship by the Civil Rights Act, even though their father did not possess U.S. citizenship, because Washington viewed their father as no longer being subject to any foreign power since he had abandoned his residency in his homeland and had assumed a new relationship and responsibility toward his new home, -the United States.
And his new home held him accountable and responsible to share the burden of national defense if needed. He therefore was viewed as fully subject to the authority of Washington.** But foreign visitors, tourists, students, and temporary workers were not. They remained subject to their foreign government’s authority and bore neither the responsibility nor privileges of immigrants who had made American their home.

** [That has not changed. Immigrants between the ages of 18 and 25 must register with the Selective Service, just like citizens are required.]
The off-spring of impermanent “non-immigrant aliens” (whether legally or illegally in the country) simply do not qualify as “completely subject” to U.S. jurisdiction because they’re subject to the authority of their home country and owe it their primary allegiance. Hamdi, as a Saudi citizen, remained subject to the jurisdiction of Saudi Arabia. Under the original meaning of the Fourteenth Amendment, -by the clear intent stated by its authors (rather than the erroneous view adopted by the Plessy-era Court), he has no constitutional claim to citizenship.

Dr. Eastman concluded his essay (the source & inspiration for this one) on the Hamdi court case thusly: “To be sure, Congress is free [under its power to establish a uniform rule of naturalization] to provide citizenship more broadly than the Fourteenth Amendment requires, and I do not mean to suggest that Hamdi is not a citizen under existing statutes. But for the past century Congress has believed it was obligated to afford citizenship to people like Hamdi. Whatever the Supreme Court does with the Hamdi case, therefore, it should at the very least make clear that Congress need not extend citizenship to terrorists like Hamdi merely because they happen to be born on U.S. soil.” 2004

Dr. Eastman is an Adjunct Fellow of the Ashbrook Center, Professor of Law at Chapman University School of Law in Orange, California, and Director of The Claremont Institute Center for Constitutional Jurisprudence.

*The effect was immediate as noted through significant racial differences in educational funding emerging in the late 1890s that would prove enormous by the 20th century. States which had previously successfully integrated elements of their society abruptly adopted oppressive legislation that erased reconstruction era efforts.
Jim Crow laws would spread northward in response to a second wave of African American immigration and would eventually extend to segregated educational facilities, separate public institutions such as hotels and restaurants, separate beaches among other public facilities, restrictions on interracial marriage among numerous other facets of daily life.
Unfortunately, the separate facilities and institutions accorded to the African American community were consistently inferior to those provided to the White community and contradicted the vague declaration of “separate but equal” institutions issued after the Plessy decision.
Jim Crow legislation related to voting would quietly disenfranchise the Southern African American by requiring of prospective voters proof of land ownership or literacy tests at poll stations. Black community leaders who had achieved brief political success during the Reconstruction era lost any gains made when their voters disappeared. Historian Rogers Smith noted on the subject “lawmakers frequently admitted, indeed boasted, that such measures as complex registration rules, literacy and property tests, poll taxes, white primaries, and grandfather clauses were designed to produce an electorate confined to a white race that declared itself supreme”, notably rejecting the 14th and 15th Amendments to the American Constitution. The “separate but equal” doctrine would characterize American society until the doctrine was ultimately overturned during the 1954 Supreme Court decision of Brown v. Board of Education of Topeka, Kansas.http://en.wikipedia.org/wiki/Plessy_v._Ferguson

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